Re: Abortion Non-Discrimination Act
Fact Sheet: ACLU's Misrepresentations
about the Abortion Non-Discrimination Act
In testimony before the House
Energy and Commerce Subcommittee on Health (July 11, 2002), the
Reproductive Freedom Project of the American Civil Liberties Union (ACLU)
made several claims about the practical effect of H.R. 4691, the Abortion
Non-Discrimination Act. Each claim is quoted below and followed by a
rebuttal that sets the record straight.
Claim: "It would
compromise the ability of Title X clients to obtain information critical
to their health."
Response: This is false
-- nothing in H.R. 4691 limits federal or state agencies' ability to
require the provision of accurate information about abortion or abortion
providers. Under H.R. 4691, government may not penalize a private health
care entity for declining to provide or make arrangements for abortions.
However, this does not conflict with current federal law on Title X family
planning services, which actually forbids grantees to promote and
facilitate abortion. In an August 2001 letter to the Missouri Family
Health Council, for example, the HHS Office of Population Affairs
explained that a Missouri law against funding agencies which perform
direct referrals for abortion does not conflict with federal requirements
on providing information on pregnancy options to clients.
Claim: "It would
interfere with the delivery of abortion services to poor women in dire
emergencies. H.R. 4691 would impede a state's ability to comply with the
federal Hyde Amendment, which mandates coverage of abortions for women in
the Medicaid program in cases of rape, incest, or where the pregnancy
endangers a woman's life."
Response: The bill
creates no such conflict. The Hyde amendment requires states to reimburse
providers for abortions in these rare cases - it does not require specific
private health care providers who accept Medicaid patients to perform
those abortions against their will, or authorize states to practice such
coercion. In fact, the Medicaid managed care law explicitly instructs
states to notify enrollees of any services to which they are entitled that
a specific provider does not offer, and to notify the enrollees of how
they might obtain such services elsewhere (42 USC Â§ 1396u-2(a)(5)(D)).
This law also explicitly protects providers from having to cover a
counseling or referral service to which they have a moral or religious
objection so long as they notify enrollees of their policy (42 USC Â§
1396u-2(b)(3)). If respect for conscience rights is an "impediment" to
easy access to abortion, that impediment is already enshrined in federal
Claim: "It would
interfere with states' ability to enforce their own laws on abortion. H.R.
4691 could prevent those states that cover medically necessary abortions
beyond those mandated by the Hyde Amendment (whether as a result of state
constitutional rulings or by virtue of state laws) from effectuating that
coverage by contracting only with Medicaid managed care organizations that
agree to provide or refer for abortion services."
Response: As in the
federal law described above, states can ensure access to any abortions
they fund without forcing specific providers against their will to
provide these particular abortions. A requirement that a state will
contract only with a provider that offers absolutely every
reimbursable service would be an enormous barrier to patients'
access to care, as few providers in any state could meet such a test.
Claim: "It would disrupt
the enforcement of state health care regulations. H.R. 4691 would thwart
the enforcement of state and local laws that require entities certified or
licensed by the state to address the full range of health care needs in
the communities they serve."
Response: It is the ACLU
approach that would "disrupt" provision of health care in unprecedented
ways. "According to a 1998 study published by the Alan Guttmacher
Institute, only 14% of U.S. hospitals currently provide abortions, and
many of these provide only a few procedures a year" (Web site of the
Abortion Access Project, www.repro-activist.org, citing S. Henshaw,
"Abortion Incidence and Services in the United States, 1995-1996," in 30
Family Planning Perspectives [Nov./Dec 1998] 263-70 & 287). If
states denied licenses and certification to all hospitals that fail to
provide the "full range" of abortions, our health care system would
disappear. The fact is that the vast majority of states already have their
own conscience laws that would prevent the enforcement of such a coercive
and harmful policy.
Claim: "It could
immunize a health care entity's refusal to provide emergency
contraception, even to victims of rape," because "it does not define the
Response: Just the
opposite is true. Because H.R. 4691 does not provide its own definition of
'abortion' or 'contraception,' it does not change the current federal
policy of classifying the morning-after pill as "postcoital emergency
contraception" [62 Federal Register 8609 ff. (Feb. 25, 1997)] .
The conscience rights of providers who recognize that "emergency
contraceptives" may have an abortifacient mode of action are very much in
need of legal clarification - but that issue is not addressed by this
Secretariat for Pro-Life Activities
United States Conference of Catholic Bishops
3211 4th Street, N.E., Washington, DC 20017-1194 (202) 541-3070
July 25, 2002 Copyright Â© by United States Conference of